Australia will be the second country in the commonwealth to protect intangible aspects of Aboriginal heritage including songs, dance and stories under new a law that comes in effect on August 1st. The new provisions are amendments to the Aboriginal Heritage Act in Victoria which put in place a significant fine for exploitation of non-physical aspects of Aboriginal culture without seeking consent of the indigenous owners.

The Actdescribes intangible heritage as, “any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.” Intangible heritage also includes any intellectual creations based on or derived from Aboriginal creations.

According to the Victoria’s Aboriginal Affairs minister, Natalie Hutchins, the new law allows Aboriginal people in Victoria “to shape the nature of cultural heritage and control how their cultural knowledge is used by others.” In addition, the reforms also help address gaps in the existing intellectual property (IP) framework for protecting cultural heritage.

Based on the new provisions, traditional knowledge holders can apply to have intangible assets of their heritage added to the heritage registry for protection. The Act grants the Victorian Aboriginal Heritage Councilwith decision-making powers over items of intangible heritage in the registry.

Under this law, it is an offence to knowingly use registered items of Aboriginal heritage for commercial purposes without consent from the relevant owner(s). Individuals can be fined up to approximately AUD $280, 000 while corporations can be fined up to AUD $1.5 million.

The effectiveness of the legislation relies on overcoming a number of challenges. For one, the intent requirement of the offence could provide evidentiary difficulties. Enforceability also relies in ensuring traditional knowledge holders apply to have their intangible assets included in the registry. Lack of awareness or motivation by Aboriginal groups to make such efforts to combat exploitation of their cultural heritage may undermine the intent of the law.

The new heritage law is a huge stepping stone in achieving protection of intangible Aboriginal assets. Unlike physical aspects of cultural heritage, which can be safeguarded in homes and museums, intangible assets are difficult to protect; they require being passed down from one generation to another. This is even more difficult in the modern era because as Bill Logan, professor in world heritage at Deakin University points out, it involves encouraging young generations to adopt dying cultural practices to keep them alive. The use of a registry can help safeguard knowledge that may be at risk of being lost otherwise.

In addition to directly protecting traditional knowledge, the heritage law also help strengthen relations between the State and indigenous people. This enables the creation of more opportunities for partnership and collaboration between businesses, government and indigenous groups based on protected knowledge, setting a great example for other jurisdictions to follow.

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Vipal Jain is a Research Assistant with ABS Canada. Her interest in international intellectual property, biotechnology and sustainable development brings her to ABS. Vipal is currently a second year JD law student at the University of Ottawa. She is also the co-founder of BioTown, a nonprofit organization in Ottawa that encourages accessible science. Vipal holds a Bachelor of Science with a specialization in genetics and biotechnology from the University of Toronto.